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Brexit and Intergovernmental Relations

Professor Michael Kenny and Jack Sheldon discuss a new report from the Centre on Constitutional Change and the Bennett Institute offering a comprehensive analysis of the weaknesses that bedevil the machinery for relations between the UK government and the devolved governments in Scotland, Wales and Northern Ireland. Over the coming weeks, we will highlight some of the findings and recommendations.

The fragilities of this system have been thrown into stark relief by Brexit. In our report we advance a number of proposals to overhaul ‘IGR’ in the UK, arguing that these should reflect the principles of respecting the authority of each government, while recognising that some cooperation between governments is inevitable in a modern multi-level political system.

The need to overhaul the current ad hoc and under-developed arrangements has assumed much greater urgency since the vote to leave the EU, given the very different perspectives on Brexit held by the different governments elected in Wales, Scotland and the UK, and the current absence of an Executive in Northern Ireland. Already there have been sharp disagreements between the Scottish government, especially, and Theresa May’s administration, about whether powers returning from Brussels in areas like agriculture and fishing should flow directly to the devolved governments, or go to London initially and then be passed on once agreements about ‘common frameworks’ relating to these issues are reached. These disputes have already got quite ugly, and they could get much worse.

Most observers agree that the Joint Ministerial Committee (JMC) structure – which is the primary forum for considering areas of disagreement between the different governments across the UK – is no longer fit for this purpose.

In our report we make the case for a number of reforms to the JMC. A fairly straightforward, but symbolically important, change would be to rotate the location for heads of government meetings, instead of meeting in London by default. We suggest that consideration be given also to rotating the chair between different governments to counteract the perception that the UK government is both a party to negotiations and the adjudicator of them. These gatherings should be organised according to a transparent schedule, not on an ad hoc basis as at present. With the current context firmly in mind, we argue for three additional JMC sub-committees to be established – on the UK’s Internal Market, on Trade, and on International Agreements.

We argue too that the important task of securing agreement on the frameworks relevant to issues like farming and food regulation will require the JMC to be more than just a talking shop, and thus to take on a new co-decision role. Drawing on evidence from five countries where a system of co-decision is well established among different levels of government, we argue that wherever possible agreements should be reached by consensus. When it is absent we suggest that those parties that wish to sign up to an agreement should be able to proceed with it, with others given the right to opt out, if agreement cannot be reached. We advise against a majority voting formula that would result in policies that governments do not support being imposed on them within their areas of competence.

We draw particular attention to the legitimation problem which arises from the ‘dual hatted’ role played by the UK government in IGR processes in relation to England. This raises suspicions about a perceived conflict of interests in the eyes of the devolved administrations, and is unlikely to be acceptable to the growing number of English people who wish to see England given greater institutional recognition and protection within the UK’s system of governance. We suggest that England should gain representation in IGR, and sketch two viable ways of achieving this. We show how an English voice could be designated within the UK delegation in IGR meetings, and observe the potential for a new forum for English local and regional politicians to convey a collective view to the UK government.

Finally, we call for the machinery and processes of IGR to be brought out of the shadows, and made more transparent, as is the case in many other countries. This could be achieved by publishing agendas and position papers in advance of meetings, and by creating a searchable website where details of meetings and agreements reached can be easily located.

An official review of IGR, instigated by the JMC itself, is currently underway, and provides an important opportunity to redesign a key part of the UK’s constitutional plumbing. While the attention of our policy-makers is for now firmly fixed on the final stages of the Article 50 negotiations with the EU, we would do well to appreciate the crucial importance of constructive and healthy relationships between the UK’s constituent governments to the health and viability of the domestic union.

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